Under the timeline the department laid out last year, the final execution on the schedule was set to take place Wednesday. Instead, attorneys for the Justice Department and the death-row inmates made their cases during two hours of arguments in a courtroom near Constitution Avenue.
An attorney for the Justice Department said the judge’s order, if allowed to stand, would effectively hobble federal attempts to carry out executions, while an attorney for the death-row inmates questioned what she called “the government’s sort of categorical, one-size-fits-all protocol.”
U.S. District Judge Tanya S. Chutkan in November found the government likely overstepped its authority with that protocol, which she said was inconsistent with a 1994 law requiring federal executions be carried out “in the manner prescribed by the law of the State in which the sentence is imposed.” The law also, she added, says that for states without the death penalty, courts must select a state that does have one for federal death sentences.
The Trump administration’s protocol, she said, “very likely exceeds” its authority under that law.
“The public interest is not served by executing individuals before they have had the opportunity to avail themselves of legitimate procedures to challenge the legality of their executions,” Chutkan wrote in issuing a preliminary injunction. Her injunction blocked four of the five executions scheduled by federal officials, while a fifth was separately put on hold by another court.
The Trump administration unsuccessfully asked the Supreme Court to put Chutkan’s ruling on hold and allow it to proceed with the executions. In December, the court denied that request three days before the first of the executions was scheduled.
No dissents were announced, but three justices — Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh — included a statement saying they respected the decision while urging the appeals court to move quickly in deciding the case. The justices also said they thought the Trump administration was “very likely to prevail.”
On Wednesday, the three judges on the panel — David S. Tatel, Gregory Katsas and Neomi Rao — seemed to agree that the question boils down to the definition of the word “manner” and how it fits within the statute.
The Justice Department has argued this word refers to the mechanism for imposing the death penalty, such as lethal injection, rather than more granular details of the procedure, including whether a sedative is offered or how a catheter must be inserted.
Melissa Patterson, an attorney for the department, asked why Congress would have mandated that federal executions hinge on precisely what a state legislature wrote into its statutes.
“Why would Congress have intended to hamstring the federal government?” she asked.
Tatel, nominated by President Bill Clinton, repeatedly pressed her about the department’s narrow reading. Both he and Rao, nominated by President Trump, at times suggested Congress had given states primary responsibility for carrying out federal executions.
“What’s the authority for the proposition that ‘manner’ can only mean method?” Tatel asked. “Isn’t that the key question in the case?”
Catherine Stetson, an attorney for the death-row inmates, said there was a difference between what she depicted as less central parts of execution procedures — such as the specific times an inmate must be moved from their cell to the death chamber — and what she called key parts of an execution plan. Those, she said, were things that impacted what the inmate experience during an execution, including the drug dosage and qualifications of people involved.
“Those are the core of any execution protocol,” she said. “That is what we are talking about when we talk about manner.”
Stetson said federal officials could lobby Congress to change the law but could not “override the prerogative of the states to set the manner of execution.” She also noted federal officials have far less experience carrying out executions than their counterparts in the states, where far more death-row inmates are held and the majority of executions carried out.
“The people who know what they’re doing are the states that are carrying out the death penalty,” she said.
States across the country have shifted their lethal-injection protocols in recent years and scrambled to obtain drugs in the face of opposition from pharmaceutical companies that do not want their products used for executions.
The new lethal-injection protocol unveiled by the Justice Department last year utilizes one drug — pentobarbital — rather than a three-drug combination that had previously been used. Federal officials say they selected it because the drug has been used frequently — including in Texas, the country’s most active death-penalty state — and upheld by courts as constitutional.
The four death-row inmates with executions blocked by Chutkan were convicted in Texas, Missouri, Indiana and Iowa. Missouri, like Texas, uses pentobarbital for lethal injections, while Indiana has a three-drug protocol. Iowa does not have the death penalty, so the courts for that case selected Indiana, where federal executions take place.
The government and the public “have a significant interest in the timely implementation of lawfully imposed capital sentences,” Justice Department attorneys said in court filings. Attorney General William P. Barr has also said the department has a responsibility to victims and their relatives to carry out the sentences.
Attorneys for the death-row inmates have pushed back against the Justice Department’s invocation of victims’ families to argue for carrying out the executions, noting some relatives have vocally opposed this.
The first execution, originally scheduled for December, was intended to carry out the sentence for Daniel Lewis Lee, a member of a white-supremacist group convicted of murdering an Arkansas family, including an 8-year-old girl, according to the Justice Department.
Some relatives of the victims in Lee’s case — including the woman whose granddaughter and daughter were killed — have asked the Trump administration not to execute him, instead asking he be sentenced to life in prison without the possibility of parole.
The other inmates involved in this case are Wesley Ira Purkey, found guilty in Missouri of kidnapping, raping and murdering a 16-year-old; Alfred Bourgeois, convicted in Texas of physically assaulting and murdering his 2-year-old daughter; and Dustin Lee Honken, found guilty in Iowa of murdering two federal witnesses, along with the girlfriend of one witness and her two young daughters.
Attorneys for the death-row inmates have also taken issue with the government’s urgency in the case.
“Defendants had taken no steps to schedule the executions until this summer, when they endeavored to do so at an unreasonably fast pace,” they wrote.